The Hamilton Spectator

The perils of back-to-work legislatio­n

- BRAD WALCHUK Brad Walchuk works as a Staff Representa­tive with the Canadian Union of Public Employees Local 3906, representi­ng close to 3,000 precarious­ly employed academic workers at McMaster University.

On July 15, Premier Doug Ford’s government tabled back-to-work legislatio­n to end a strike by roughly 2,000 precarious academic workers at York University — the longest postsecond­ary strike in Canadian history. As part of the so-called Urgent Priorities Act, the “Back to Class” provisions for York University ends the strike, bans any lockouts, and sends all outstandin­g issues to a third-party arbitrator.

While the strike itself may be over by September, the issues surroundin­g it — and the costs that the provincial government will likely face as a result of the legislatio­n — are likely only beginning. Relative to all other provinces, Ontario universiti­es receive the lowest per student government funding. There is no reason to think that this will changed under the new Progressiv­e Conservati­ve government, and in fact, it may even get worse. This funding shortfall leads to larger class sizes, fewer tenure-track jobs, and an increased use of precarious­ly employed sessional faculty who teach term-to-term. It also leads to less money being available for scholarshi­ps, especially for graduate students, and an increased reliance on tuition and other ancillary fees by universiti­es to cover a shortfall in government funding. A lack of government funding also reduces on-campus employment opportunit­ies, such as research assistants, for graduate students. This is especially true in summer months. All of these issues led, in part, to the strike at York University, and the introducti­on of back-to-work legislatio­n fails to address of these issues in a meaningful and systematic way.

The other and perhaps more notable shortfall is that it legislates away rights protected by the Canadian Charter of Rights and Freedoms, notably the right to bargain collective­ly and the right to strike. The right to bargain collective­ly was secured as a constituti­onally protected right by the Supreme Court of Canada in 2007, and the right to strike was similarly found to be a constituti­onally protected right by the Supreme Court of Canada in 2015. As constituti­onally protected rights they cannot, or at least should not,

simply be legislated away by government­s when it seems politicall­y expedient to do so.

Mark Hancock, President of CUPE National, has noted that “The Premier does not get to ignore the Charter-protected rights of working people in Ontario when it’s inconvenie­nt for his political agenda” and that “CUPE will respond with necessary actions to protect our right to free collective bargaining.”

Legislatin­g away constituti­onally protected rights such as the right to bargain and the right to strike, as the newly elected government has made it clear it will do here, does not come without its costs. For example, in 2008, the provincial government in British Columbia was forced to come to a settlement with the Hospital Employees Union (HEU) for $75 million to cover compensati­on and retraining for thousand of members whose bargaining rights were legislated away.

More recently, in Ontario, the previous Liberal government was compelled to compensate teachers and education workers for over $100 million for violating their rights with the passage of Bill 115 in 2012. A judge found that the government “substantia­lly interfered with meaningful collective bargaining” in 2012 when it passed legislatio­n that imposed contracts on teachers and education workers.

The portions of the Urgent Priorities Act that have ended a legal strike by teaching assistants at York University

have similarly interfered with meaningful and constituti­onally protected collective bargaining rights (and the related right to strike), and there is a clear precedent for a long and costly judicial battle. The government is at risk of being on the hook for a large settlement.

York University cannot be ignored for their role in prolonging the strike, as evidenced by their bargaining only twice with CUPE 3903 over the duration of the 20-week strike. The province’s passage of back-to-work legislatio­n may provide York what it has long sought — an arbitrated settlement and the ability to not have to negotiate with CUPE — but a developing legal precedent around backto-work legislatio­n is likely to pass the buck from the employer to the province, and fails to address the issues which to led to the strike.

While legislatin­g striking workers back to work may appear to be politicall­y expedient, the reality is that it violates basic rights, fails to address the root cause of labour unrest, and often results in significan­t settlement­s. The newly elected government would be wise to review the recently developed jurisprude­nce on constituti­onally protected rights for workers.

 ?? COLIN MCCONNELL TORONTO STAR ?? CUPE union members rally at York University near the beginning of their epic strike, which the Ford government has now ended.
COLIN MCCONNELL TORONTO STAR CUPE union members rally at York University near the beginning of their epic strike, which the Ford government has now ended.

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